US ruling reopens old ‘Troubles’ in Northern Ireland

US ruling reopens old ‘Troubles’ in Northern IrelandA Boston College research project meant to collect testimony about Troubles-era crimes may now be a political time-bomb for Northern Ireland, thanks to a federal appeals court ruling.
By Jason Walsh, CorrespondentThe Christian Science Monitor – CSMonitor.com
posted July 13, 2012

Belfast, Northern Ireland, and Dublin, Ireland

When Boston College launched its Belfast Project the aim was to create an insiders’ oral history of Northern Ireland’s so-called “Troubles” by collecting the testimonies of participants on all sides of the conflict. What no one expected was for history to rear up and become the present once more.

That is precisely what has now happened as a US federal appeals court has ruled that the researchers’ right to free inquiry is overridden by the British state’s right to investigate past crimes.

The July 6 ruling by the US Court of Appeals for the 1st Circuit results from Boston College researchers Edmund Moloney and Anthony McIntyre’s attempts to block two sets of subpoenas issued by the Police Service of Northern Ireland (PSNI). The PSNI wants access to the testimonies in order to pursue prosecutions for unsolved crimes – in this case one of the most unsettling of the murky 30-year war: the abduction and secret killing of Jean McConville in 1972.

Mr. Moloney is a respected senior journalist who covered the conflict for three decades while Mr. McIntyre is himself a former Provisional Irish Republican Army (IRA) member, turned academic.

Boston College is separately appealing the order enforcing one of the sets of subpoenas.

Ironically, all sides want the truth to be told – the question is when, under what circumstances, and if it will be the full historical record.

“The whole purpose of doing the archive was to establish some truth, as far as you can,” says Moloney. “What you do is collect it together and look at it in the round.”

The Belfast Project, hosted by Boston College, collected testimonies from pro-Irish republicans and pro-British loyalists about their activities during the 30-year-long Troubles, on the basis that the information would not be made public until after their deaths. The testimonies were meant to provide a frank history of the Troubles that might otherwise go untold. But the court decision has thrown this into disarray.

“They [the PSNI’s Historical Enquiries Team] are trying to open a Pandora’s box here, that has the potential to cause all sorts of damage,” says Moloney.

The Disappeared

The case at issue centers on the testimony of former IRA member Dolours Price, whose interview with Moloney and McIntyre, police allege, may contain information about the circumstances surrounding Mrs. McConville’s murder. Speculation is running wild that Ms. Price’s testimony will link Sinn Féin leader Gerry Adams to the killing, which, if true, could prove explosive to Northern Ireland’s long-standing yet fragile peace accord and power-sharing government.

The murder of McConville is one of the most contentious killings of the Irish conflict. McConville, a Catholic convert and mother of 10, lived in West Belfast, ground zero for the early years of the conflict. In 1972 she was abducted and killed by the IRA. She subsequently became the best-known of “the disappeared,” those believed to have been killed by the IRA in secret because it was feared that revulsion at their killing would have turned nationalists and republicans against the organization.

The IRA admitted responsibility for the killing in 1999, but claimed McConville was a spy, which her family denies. Her body was recovered in 2003, buried in County Louth in the Republic of Ireland.

After the court ruling, the material is expected to be handed over by Boston College in the next month.

In January 2012, Mr. Adams told Irish national broadcaster RTÉ he had “nothing to fear from any of this.”

US Senator John Kerry is among those who have campaigned for the subpoenas to be overruled, arguing they could destabilize the settlement in Northern Ireland which sees the pro-British Democratic Unionist Party (DUP) share power with Irish republican Sinn Féin, once the political wing of the IRA.

DUP Member of Parliament Gregory Campbell welcomed the ruling, telling reporters: “This is a step closer to establishing if there is information in the tapes that might be of assistance to the authorities in Northern Ireland. This could lead to the investigation of many senior personnel within the IRA and other groups about matters they were involved in, and if that is the case it would be welcome.”

Attorney John McBurney, who has represented the families of some of those murdered in the conflict, says the law must come before politics and so the tapes must be released.

“It would undoubtedly have an impact but the real difficulty of this is the Jean McConville file is an open file. In the midst of this there seems to be this tape which the PSNI simply couldn’t ignore.

“It’s unfortunate that it’s such a politically sensitive case that is the test case, but as [British Secretary of State for Northern Ireland] Owen Patterson said, no matter who the finger points at, the law is the law,” says Mr. McBurney.

McIntyre says the politicking has begun.

“Already you see the DUP’s Peter Robinson [First Minister of Northern Ireland] calling for arrests [of republicans for past crimes] – he may be playing to the gallery, but the gallery is there to play to.

“Left to his own devices, Robinson wouldn’t pull the plug [on the power-sharing arrangement], but that gallery is made up of people who instinctively hate the setup. Political instability can arise from this [including on the Irish republican side],” says McIntyre.

Conflicting Claims

In her ruling chief, 1st Circuit Chief Judge Sandra Lynch nixed Moloney and McIntyre’s claim of academic research privilege as a constitutional exercise of freedom of speech, saying “the choice to investigate criminal activity belongs to the government and is not subject to veto by academic researchers.”

The case has also raised hackles among journalists and academics who say source protection is sacrosanct.

The National Union of Journalists, a joint British-Irish organization, condemned the ruling, with General Secretary Michelle Stanistreet saying the ruling has “significant implications” for academic and journalistic research.

Tommy McKearney, an ex-IRA member now working as a labor activist and with ex-prisoners in a reconciliation project, says Boston College must shoulder its share of the blame for the situation.

“I would expect that academics would have at least the same amount of integrity as journalists. Journalists, by and large, will protect their sources. They’re not protected by law but journalists put their foot down and say they’ll go to jail rather than reveal sources,” he says.

McIntyre also fears for his own safety.

“People who think the Provisional IRA have folded-up shop are foolish,” he says.

“It doesn’t seem right that my wife and children have to live under this stress. What can I do? Run away? To where? To abandon people? I have to take the researcher’s risk,” he says.

SITE MAP

The value of the Oral Tradition is its democracy; it doesn't give to an intellectual elite the exclusive right to shape a communal memory and the collective memory. It makes into a common wealth the story of our shared lives. It's something that we share in common – and it's like a collection plate into which we can all put something: our stories, our myths and the ease with which we are able to, in some way, cross boundaries. - Cleophus Thomas, Jr.

First Circuit Court of Appeals

May, 2013

“… we must forcefully conclude that preserving the judicial power to supervise the enforcement of subpoenas in the context of the present case, guarantees the preservation of a balance of powers… In substance, we rule that the enforcement of subpoenas is an inherent judicial function which, by virtue of the doctrine of separation of powers, cannot be constitutionally divested from the courts of the United States. Nothing in the text of the US-UK MLAT, or its legislative history, has been cited by the government to lead us to conclude that the courts of the United States have been divested of an inherent judicial role that is basic to our function as judges.”

“… the district court acted within its discretion in ordering their production, it abused its discretion in ordering the production of a significant number of interviews that only contain information that is in fact irrelevant to the subject matter of the subpoena.”

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